Notes on ACTA from a Consumer Perspective
1. Is ACTA really an anti-counterfeiting agreement?
Consumers are in favour of measures that confront commercial fraud, especially when it affects public safety and health, the quality of consumer products or the false representation of a trademark. Nevertheless, real counterfeiting or trademark fraud, that can really be dangerous for consumers, should not be in the same agreement as other very different issues such as copyright infringement. The lack of a definition of counterfeiting in accordance with international law creates confusion and contradictions in this proposal.
2. Consumers consider that some ACTA could mean higher prices and fewer innovative products.
Consumers are concerned ACTA could increase the price of key consumer products by erecting new costly legal barriers to competition and innovation. The new enforcement measures proposed could increase the legal costs and risks of placing new products in the market by raising the stakes of possible legal sanctions and economic penalties. Innovation could clearly by “chilled” if new disproportionate and harsh enforcement proposals were approved that are based on “retail or market value of goods”. These proposed measures could also be used by some countries as part of protectionist policies against the entry of competitive goods which could also raise prices. Flexibilities and exceptions to intellectual property rights that favour lower prices of essential goods for consumers worldwide, could also be threatened by ACTA border measures.
3. Consumer protection demands a clear definition of “commercial scale” infringement on Internet.
EU officials have insisted on “leaving it open for judicial interpretation” the term included in ACTA about persecuting violations of IP of “commercial scale”. By leaving this issue open in an ambiguous way individual consumers could suffer penalties and harassment because “commercial scale” can be interpreted as the “accumulation of individual acts” as opposed to “willful criminal intent” planned and organized on a large scale. Internet file-sharing or other non-commercial actions by individuals should not in any way, directly or indirectly, be subject to any enforcement measures as they can be in the application of ACTA.
4. Consumer privacy, data protection and freedom of expression must be guaranteed in face of Internet policing and filtering.
“Intermediary liability” of service providers, mandated directly or encouraged indirectly, could deprive consumers of the neutrality of Internet services and legitimize the cutting off of internet service without prior judicial due process. Consumers consider privacy and data protection as a fundamental rights that must take priority over any measure of Intellectual Property protection. Consumers also reject any measure that restricts freedom of expression except in cases of public security and health. The EU Data Protection Supervisor and the UN Rapporteur on Freedom of Expression have voiced concerns about ACTA in this regard.
5. Consumer and citizen participation in multilateral institutions must be safeguarded and not circumvented by the new structures that limit democratic process, citizen involvement and participation of the South.
Consumer and citizen participation could be seriously limited by the setting up of a new plurilateral ACTA organization that by-passes existing international institutions, such as WIPO or WTO, where consumer organizations have certain guarantees regarding their involvement. . Consumers also have concerns about the democratic credibility of ACTA institution that do not include most countries from the South.
David Hammerstein, TransAtlantic Consumer Dialogue